Time to Update Your Sexual Harassment Policy

What is the AE’s legal role in preventing sexual harassment at the association?

By Lesley Walker, vice president, deputy general counsel at the National Association of REALTORS®

It is virtually impossible, these days, to avoid stumbling across yet another breaking news story on sexual harassment. Victims of harassment are coming forward, and the accused are feeling the consequences. These high-profile stories of workplace harassment have association executives across the country grappling with how best to protect themselves, their staffs, and their members from harassment. The answer, in a nutshell, is policies and education, and now is the time for you to revisit both.

What is sexual harassment, legally?

First, it’s important to understand that sexual harassment covers a broad range of behaviors that can include verbal and nonverbal conduct including sexual jokes, innuendos, or propositions, as well as leering and the display of sexually suggestive objects or pictures. It can be in person or over the internet, including social media or email. Moreover, sexual harassment can be intentional or unintentional and overt or subtle. And, while we often think of sexual harassment in the context of a man sexually harassing a woman, keep in mind that a woman can also be the harasser, and that it can occur between members of the same sex.

AEs have a responsibility to ensure an environment free of harassment. Your efforts to create and maintain a strong antiharassment program will not only help protect your association from legal liability but also help safeguard some of your most valuable assets—your employees, volunteers, and reputation. Failure to establish an antiharassment program and failure to take immediate and appropriate action in response to harassment you knew about or should have known about, on the other hand, could land the association in hot water. Your association could be named in a lawsuit between the accuser and the accused as complicit in the harassment.

Every REALTOR® association should have well-written antiharassment policies, including one for staff covering interactions between employees and between employees and members, and a second policy, or code of conduct, for the association’s leaders. This code of conduct would apply to leaders carrying out the association’s business, and should cover both interactions between association leaders and interaction between those leaders and association employees. NAR recently updated its samples, guidance, and resources for associations on this topic. See sidebar.

Have a clear policy

Your antiharassment policy should include several key elements. First, the policy should have a clear definition of harassment. Next, the policy should contain a statement encouraging individuals to immediately report harassment and identify where incidents of harassment should be reported. Here, your policy should include multiple avenues for reporting harassment. Human resources, an employee’s supervisor, or even the association executive are all appropriate reporting avenues to consider including in a policy.

For instances when an association executive is the victim of harassment, it would be wise to include a provision that directs the AE to report the complaint to the highest-ranking elected officer not involved in the complaint. That official must then follow the procedures in the policy to investigate the complaint.

The policy should also clearly outline the steps the association will take to investigate a complaint and the potential consequences for individuals found to be in violation of the policy, such as, but not limited to, termination in the case of employees or removal from positions for elected leaders. And, remember, each complaint must be investigated promptly and thoroughly. If you do not have a qualified investigator on staff, consider involving legal counsel to assist you with the investigation and resolution of the complaint.

Finally, be sure that your policies include a “no-retaliation statement.” This communicates that there will be no negative consequence for anyone who makes a good-faith report of harassment. This is an important element in creating an environment where victims feel comfortable speaking up and reporting inappropriate behavior without fear of negative consequences. This, in turn, helps place the association in a position to promptly address issues of harassment—all of which helps the association avoid liability down the road.

Antiharassment training and awareness

Once the policies are in place, your job is not over. Antiharassment training sessions for employees and association leaders are a critical part of an effective harassment prevention program.

Conduct training sessions for new employees as well as periodic retraining sessions throughout their employment. For association leaders, include antiharassment training as part of the association’s leadership orientation program. Feel free to include NAR’s video explaining the National Association of REALTORS® antiharassment policy posted at nar.realtor/national-leadership/board-of-directors/code-of-conduct-and-sexual-harassment.

You can even go one step further and require employees to sign an acknowledgement of their understanding of and compliance with the association’s policy, and require association leaders to sign and agree to the association’s policy, or code of conduct, as a requirement of their leadership position.

In the end, even the most well-written and well-intended policy will have little protective effect if the association does not adhere to it. To ensure that your association creates a zero-tolerance environment for harassment, you must not only implement policies but also follow them by promptly addressing each complaint in accordance with the policy.

Through your policies, educational efforts, and adherence to the policies, your association will go a long way toward meeting its responsibility to provide an environment free from harassment, and avoiding legal liability.

Harassment Policy Resources

Above: NAR’s General Counsel, Katie Johnson provides an overview of the Association’s Code of Conduct and firm policy against sexual harassment in a video. At nar.realtor, search “sexual harassment.”

New Governance Guidance from NAR

“Good Sense Governance,” a new monthly information and resource series at nar.realtor created by NAR’s Legal Affairs and Association & MLS Governance teams, provides association governance best practices and resources aimed at helping associations implement sound governance practices, and tackle important governance issues. Each edition features NAR guidance, a printable fact sheet for distributing to leaders and volunteers, and links to state and local association resources. The February edition of Good Sense Governance features new resources on sexual harassment policy.

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